Posted
by
kdawson
on Monday January 10, 2011 @08:58AM
from the ten-years-is-long-enough-for-anyone dept.

palegray.net writes "A web hosting provider called Appnor has recently moved the network diagnostics utility WinMTR off of SourceForge, and is now claiming the program to be a closed source, commercial application (it was previously made available under the GPL). I emailed the current maintainer of the original mtr utility about this, and have been informed that this event most likely constitutes an overt GPL violation, as it is presumed that WinMTR contains mtr code. Appnor claims that they have the right to do this, as there have been no external contributions to WinMTR in over ten years. I'm not a lawyer, but I don't think copyright law works that way."Update: 01/10 18:24 GMT by KD: The CEO of Appnor, Dragos Manac, has posted a response, claiming that no GPL violation occurred, and promising to revert the code to GPLv2 by the end of the week. Update: 01/11 14:01 GMT by KD: That was fast. WinMTR announced that the code is now available under the GPLv2.

I agree. My first thought was in the lines of "it would be great if they actually were in the right, because it would mean that the copyright had expired". As it stands, copyright basically never expires. And that's not the idea behind copyright.

IANAL, I should have mentioned in my original post. I think whether calling such a program derivative is fair or not depends on the situation.

If you're talking about a very minor amount of code and/or code implementing a well-known or trivial solution (ie. a quicksort implementation), then calling all of the subsequent code derivative -- even if it's another quicksort implementation -- seems excessive. OTOH, if you're talking about domain-specific, non-trivial code which you simply tear out and re-implemen

Because plots are copyrightable, the actual functionality of code is not.

Since when can plots be copyrighted? Most of the publishing industry would vanish overnight if that was the case.

Are you claiming that if I was to take the Windows source, rewrite each function myself so it no longer contains Windows code, and then release it, Microsoft wouldn't have a zillion lawyers outside my house the next day?

but try writing a non-parody book about a boy wizard Larry Cotter who's parents are killed by Lord Woldemort who himself was almost killed in the attempt to kill that boy who now lives with non-magical step parents who hate magic who is then on his xth birthday suddently visited by a large and imposing groundskeeper who delcares that he's a wizard and whisks him off to a magical school where he quickly makes 2 friends and had adventures involving a magical train, a flying car, a tree which hits people, werewolves,giant spiders, dragons, a touranemt with a couple of others schools, some version of rugby/football played on broomsticks etc along with the evil overlord returning every book or so to try to kill him....

The problem remains where to draw the line. The orphan who discovers that her parents were murdered by a villain and sets out to avenge their death is an unprotectable cliche. But every copyrightable work is a compendium of uncopyrightable components -- namely, words.

So looking at what you've written, those are such broad strokes that I would expect any US court to hold that it does not infringe JK Rowling's copyrights. Then again, if you were to keep to the outlines of what you describe, but were to divide and sequence the chapters precisely as JK Rowling did, I wouldn't be surprised if the court went the other way. Clearly on the other side of the line, if you were to scan and OCR a Harry Potter book and find and replace "wizard" with "solar knight" and "Voldemort" with "Galactina," you'd probably end up paying the fees of Ms. Rowling's lawyers.

there's massive leeway given to things being "inspired by" previous work but if you go too far you end up at the bad end of a copyright suite.

It is not a new utility, it has been on SourceForge for 10 years. What everyone seems to be missing is this: it is THEIR code. They bought the rights from the original developer 10 years ago. THEY created the SourceForge project and released it under the GPL. It didn't contain ANY GPL code, ever, until they released it as such. In 10 years, no-one outside their company contributed to the project - they still own ALL the code. Now they have decided to no longer offer the code under the GPL, which is entirely within their rights, as they own it.

IANAL, but I believe that means that if I contributed code to WinMTR, and these guys violated the GPL for all the code except that which I wrote, then I would have no legal claim. And thus, even if "derivative works" that are completely made of original code are violations of the GPL, nobody would have a legal claim against the violators.

From what I know, the Software Freedom Law Center ( http://www.softwarefreedom.org/ [softwarefreedom.org] ) provide pro bono legal representation to creators of Free and Open Source projects. Maybe you should contact both the SFLC and the maintainer of the mtr and see if there's any way of getting them together to file a GPL violation case or an injunction.

Perhaps before going in with guns ablazing, some tact would be helpful. Their webpage doesnt exactly scream "hostile", as they are still offering the utility free (provided you sign up for a newsletter). They may be violating the GPL, but it may be entirely unintentional or out of ignorance-- could the author of MTR simply email them, informing them of the situation? He will eventually have to contact them anyways, I believe-- wouldnt any eventual lawsuit have to come from an author of MTR anyways?

I mean, its GOOD that someone is updating this utility; going after them with a lawsuit right off the bat doesnt exactly make "lets update abandoned GPL software" look like a good idea.

What's a "GPL violation case"? The GPL is a license, not a contract. You'd have to find someone with a copyright interest in the source, and the cause of action would be breach of copyright, not "GPL violation".

Hmm, you've got a point. GPL3 does now contain some very spurious language that attempts to assert that the recipient has "agreed" to the GPL if they distribute.

That's exceptionally foolish, as it muddies the water between a pure license - with copyright as a remedy - and a contract. Another Eben Moglen classic - why use one word, when seven will say more of less the same thing, in a more ambiguous way.

That's exceptionally foolish, as it muddies the water between a pure license - with copyright as a remedy - and a contract.

The language used in GPLv3 to describe what type of agreement is being entered into is puprosefully vague, because it must apply in many different jurisdictions while avoiding incuring the liabilities of a particular legal framework in one jurisdiction which may be strengths in another jurisdiction. Furthermore, it isn't like this license was written only by Eben Moglen. Hundreds of peo

Somebody created a program called MTR, and a web company modified it to WinMTR and stole the author's labor without payment. Is that the general gist of it?Sounds like something RIAA/MPAA, record, and Movie Companies would do.

No, they didn't steal the author's labor without payment, at least not originally with WinMTR. They made a derivative work, still using the GPL, so all is acceptable.It's only when they changed the license to commercial that they broke the contract with the original developer who specifically requires anyone using mtr code to provide their software under GPL (among others).So unless they can prove that there is no more mtr code in WinMTR, they must absolutely provide WinMTR under the GPL. Otherwise they hav

The post just mentions it is 'presumed' that it was based on mtr...I find that a bit week. First you have to prove that there ever was mtr code in winMTR, then you accuse them with a GPL violation.... Either the summary is incomplete/incorrect, or the submitter is jumping to the second part without doing enough fact checking.

Uhm, mtr "abandoned"?? Most distributions seem to be removing old staples like traceroute from default installs, having replaced them with mtr, which certainly doesn't seem to be pining for the fjords.

mtr does everything traceroute did, except instead of doing every probe only after the previous one has timed out, it sends them all concurrently, a packet every a fraction of second, providing a nifty real-time display of statistics.

Actually, the site reads "[WinMTR] was started as a clone for the popular Matt’s Traceroute (hence MTR) Linux/UNIX utility." That doesn't mean source code was necessarily copied, just that they wanted to duplicate MTR's functionality. However, Rob Shinn posted evidence that code has been copied in a comment [palegray.net] to the summary's Palegray link. For instance, the lines

So, you're making the same type of argument that SCO made when they claimed they actually owned Linux. "See, look at this scrap of code, it looks a lot like this other scrap of code." Of course, we all know how well that worked out for SCO.

No. I'm not a lawyer but I imagine the argument goes something like this:

"Burden of proof" in a civil (e.g. copyright) case is "preponderance of evidence."

WinMTR previously was GPL'ed and the source was available. Part of its licensing was the licensing of the mtr code. This constitutes prima facie evidence that at some point in time, at least, there was mtr code in WinMTR.

Therefore, the burden is now on WinMTR to prove that all mtr code has been removed from WinMTR. At bare minimum, there is enough evidenc

Nah, payment doesn't really come in to this. They legitimately benefited from the labour of the original artist, with certain conditions applied, but much later-on decided that these terms no-longer applied to them. Kind of like being allowed to stay rent-free in a house, on condition that the lawn is kept tidy, but after a few years deciding to screw the lawn and sell the lawnmower in order to buy crack.

The overly expansive nature of modern copyright meants that the actions of this company would be still considered "piracy" long after the authors are dead and long after we're no longer around to argue the point.

Interestingly enough, 10 years of abandonment is getting close to the limit of the original copyright term.

Thus the concept of "abandonware" for 20 or 30 year old discarded works.

Or someone made a mistake? Geez, I see no indication that anyone actually tried to contact Appnor (despite the summary implying it), and people are labeling them as monsters (MPAA comparisons? Really?)

How about a polite "You guys might be violating the GPL, any chance we can discuss?" email, or something? You dont have to fire off a lawsuit immediately, and generally the places that help with enforcement (ie EFF) tend to NOT want to cram a lawsuit down someones throat until all other avenues have been tr

- It contains only code they have copyright over- They have permission from (if any) all other copyright holders.

However they can't revoke the license they gave everyone who downloaded their gpl versions, these old versions and their license is still valid.

However if the code indeed contains mtr code and they have no permission from the copyright holders to distribute is under something else than the GPL.... Then they have a problemBut you have to prove that first.

Yeah, it IS possible to relicense GPL code, but you need to be able to prove in a court of law that you attempted to contact EVERY single contributor and give them plenty of time to reply.

(As I understand it, there were some Mesa GPL contributors that could not be contacted, but the Mesa developers went through a lot of trouble to try and contact everyone and gave them many months to object.)

In this case, it sounds like there were "no external contributions for 10 years", but even ONE contribution still pre

Yeah, it IS possible to relicense GPL code, but you need to be able to prove in a court of law that you attempted to contact EVERY single contributor and give them plenty of time to reply.

Wrong. If you own the copyright to a piece of code, no matter how many times they try to contact you, they are still infringing on copyright if they use the code. Copyright doesn't go into the public domain just because the owner doesn't enforce it. You don't lose your rights as copyright holder if you don't enforce the

Unless everyone who originally submitted code to the GPL project has explicitly agreed to the relicensing, they're breaking the law. You don't "implicitly" agree to relicensing of code you've submitted just by not contributing any more for a while. The only time that a time frame comes into it is when the copyright actually expires and the project falls into the public domain, which in our era of life-plus and Mickey Mouse Copyright Perpetuation Acts, is basically never. This is the exact type of scenario the GPL was designed to prevent.

There is nothing requiring them to continue to make available any of their own code that they had previously released GPLed. Thus while there is nothing preventing someone to fork the old GPL version, if nobody has a copy of the source, there is no way practically to do so.

Does this depend on the version of the GPL? I thought you were allowed to hold-on to your source code except in cases where you provide a product with GPL'ed code in it (and in later versions a service with GPL'ed code), only then are you required to provide source access to those people on request. What the buyer does with it is after that doesn't apply.

Am I right in thinking there's no problem removing the source code and charging for a sale, but the authors would then (and only then) be required to provi

I think that's been pretty consistent in all versions. If you distribute a GPLed product (excluding internal use within organisations) then you must make the source available to anyone receiving your product, and there are a number of ways suggested for this distribution. Technically they're not required to make the source available to the general public, but these days it tends to be the easiest option. I suppose limiting it to distribution of source based on distribution of the actual product made sense i

Why does sourceforge allow the removal of GPL'd projects in the first place? You'd think that would be something you can't take back...

Here's a pretty good reason, IMO:

Ten years ago, I was really interested in writing programs for PalmOS. I spent some time working on some programs of dubious utility, plus a game that never quite got to the point of 100% working properly. Then, at some point, I just stopped. I moved on to other things. But still those projects were on Sourceforge.

Now, PalmOS is basically dead. You have to jump through some arcane hoops just to get an SDK. PalmOS is just about ready to drop off the map entirely.

In the case of derivative works under the GPL: That's assuming you've already given them the source code. If you distribute the executable with a link for downloading the source, but you don't package the source with it, you could end up in a situation where strict compliance requires you to host something you otherwise wanted to stop hosting - at the very least, a link to some other repository, or a means of contact for yourself or your company.

It may be a GPL violation, but who cares? Those tools already ship free in every OS on the planet. Nobody's going to make any money off this. And the fact that nobody from the community contributed code in 10 years kind of tells us what level of interest there is.

No. The current maintainer of MTR, Roger Wolff, does care. He's quite explicit in his email, reproduced in TFA. He's been maintaining the software since before WinMTR existed as well according to the MTR page [bitwizard.nl].

# This program is free software: you can redistribute it and/or modify# it under the terms of the GNU General Public License as published by# the Free Software Foundation, either version 3 of the License, or# (at your option) any later version.## This program is distributed in the hope that it will be useful,# but WITHOUT ANY WARRANTY; without even the implied warranty of# MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the# GNU General Public License for more details.

# You should have received a copy of the GNU General Public License# along with this program. If not, see <http://www.gnu.org/licenses/>.##include <stdio.h>main(){
for(;;)
{
printf ("World peace!\n");
}}

1) The company has rights over the entire source code, bought from the original maintainer. There is NO other code from contributors.

2) The whole thing is written from scratch for Windows. No MTR code is used.

If the code for v0.9 looks anything like this [google.com], no it doesn't. There are direct copies from Matt's Traceroute (mtr), so I've forked your previous Sourceforge project, as is my right under the GNU General Public License.

As others have noted, several people have apparently found mtr sources in WinMTR. This means either (1) you've been misinformed, (2) you're deliberately lying, or (3) they're lying. Given that people have posted actual code excerpts to back up their claims, I strongly suspect you're lying.

In case your lawyer gives bad advice, I'd suggest you double check with the "original maintainer" whether he had copied (or "adopted") code from elsewhere, and do a diff or something against the mtr sources.

If the original maintainer misrepresented his ownership of the winmtr code, you probably have a claim against him.

If not, then they can make future versions proprietary if they wish, since they presumably hold all of the copyrights. OTOH if there have been outside (community) contributions, then they can only take it proprietary if everyone who has touched the code consents. So we still don't know enough to say whether this is a violation or not.

Note that the above has absolutely no bearing on past versions; you can't "take back" existing code after it has been distributed under the GPL. If they are trying to go after people for distributing old versions (or derivatives thereof), then this is indeed a blatant GPL violation.

They aren't saying that MTR hasn't been updated. They have sometime in the past created WinMTR, hosted it on SourceForge as GPL and OpenSource, but in the past ten years never had anyone but themselves making changes. So... they decided to convert to a commercial license! Now I'm not arguing that this is right since original MTR source likely still exists within it but the ideas that they are denying MTR as having been updated is incorrect.. This is sort of like how other products have gone from OpenSource to closed in the past when no one was helping out except the original developers... except that in this case they aren't the very original developers having converted someone else's code some ten years in the past. It's not clear if they have continued to use updates to the original MTR code or not.

Here's the post from their page in case it's still Slashdotted...========Present (2010-2011)

WinMTR is managed and developed by Appnor MSP.

The current version is 0.9. We plan to roll out a new version each quarter. More in the Development section.

License: Commercial. We changed it from GPL since in the last 10 years there was no external development. Still, we plan to offer it for free.

WinMTR has got a new home, moved out of Sourceforge on to WinMTR.net!Past (2000-2010)

The WinMTR project was started in 2000 by our good friend Vasile Laurentiu Stanimir.

Timeline:

* 20.01.2002 – Last entered hosts an options are now hold in the registries. Home page and development moved to Sourceforge.
* 05.09.2001 – Replace edit box with combo box which hold last entered hostnames. Fixed a memory leak which caused program to crash after a long time running. (v0.7)
* 11.27.2000 – Added resizing support and flat buttons. (v0.6)
* 11.26.2000 – Added copy data to clipboard and possibility to save data to file as text or HTML. (v0.5)
* 08.03.2000 – Added double-click on host name in list for detailed information. (v0.4)
* 08.02.2000 – fix ICMP error codes handling. Print an error message corresponding to ICP_HOST_UNREACHABLE error code instead of a empty line. (v0.3)
* 08.01.2000 – support for full command-line operations (v0.2)
* 07.28.2000 – first release (v0.1)

Future (2011-2038)

We plan to further develop WinMTR, keep it running on newer platforms and add the requested functionality. Find out how you can help by reading the Development page.

"Instead of dealing with this, I decided to take the blame and do the mature thing: revert to GPL v2. By the end of the week (January 16 2011) the updated sources (stating the new license) will be on Sourceforge for all to download and further enhance."

Please update the story. It seems like Dragos is at least trying to operate with good faith and fix a potential mistake.

They can thank Disney and Sonny Bono for the situation; they will not be able to offer it as closed source until 75 years after the last GPL contributor has died, unless they work out a separate distribution license with each and every contributor. However, even if they work out that license, the GPL version must still remain GPL, but what they can release at that point is a closed source/proprietary fork/derivative of the project.

Hey, that's pretty much how StarOffice/OpenOffice and MySQL worked!

However, after reading the "fine" article rather than just the summary, I learned that the maintainer insists there was one checkin from another contributor, and that the code has been removed. So, if the offending code has been removed, I fail to see the problem. However, since it was GPL and distributed recently, the source must remain available to any who request it for three years following the latest distribution (download, sale, CD sent via carrier pigeon, whatever) of the binaries. So, if they are refusing to provide the source upon request, they are still in violation of the GPL even if the "offending code" has been removed.

I don't know, it probably wouldn't be because there's no such thing as an Abandonware "classification". It's just a feel-good term made up by people so they feel less bad about blatantly distributing games with still-active copyrights.

I don't know, it probably wouldn't be because there's no such thing as an Abandonware "classification". It's just a feel-good term made up by people so they feel less bad about blatantly distributing games with still-active copyrights.

BLATANT, I tell you. These people are distributing DOS games whose publisher is out of business and no longer selling them. It's so BLATANT. BTW, the word BLATANT was on my Power Words of the Day Calendar for today.

Your response is just as typical. Ignoring the fact that it is really common for people to differentiate between 'abandonware' and other forms of copyright infringement. 'abandonware' specifically refers to software that cannot be obtained new at any price. There simply is no way to pay for it. Thus, while 'abandonware' is certainly a euphemism for a particular class of copyright violation, claiming that it has anything to do with "everything-should-be-FREEEEEE" is a gross mischaracterization of what is being discussed. By the way, your first sentence was also an ad-hominem attack, so you are guilty of exactly what you accuse the parent poster of.

If there's no expiry date in the contract you agree to, then as long as you continue to use the service (the gpl'd code), then you are continuously agreeing to abide by the terms of the contract.
There's no abandonment clause.

No. It's a concept borrowed from real property. You know, that thing that idiots like you continue to try to conflate software with.

I've never seen anyone conflate software with real property. The accusations that other people are trying to do so usually require either falsely conflating real property with all legal property or conflating "treating something as an entirely different class of thing with some similar features" with "conflating".

Doesn't make it legal. There's still copyright on Abandonware, the idea though is that the original authors will make no/cannot make an attempt to litigate, hence it being "abandoned". The classification doesn't usually come from the author, but people who find great software that's (typically) no longer available, then make an effort to keep distribution of that software alive.

There's no such thing as "abandonware".You've invented a term that is popular but doesn't actually exist in legal parlance. There's copyrighted work like 1928's Steamboat Willie, and then there's uncopyrighted work like 1946's It's A Wonderful Life (the license was not renewed) AKA public domain. Since this MTR program is only 10 years, the copyright has Not run out yet.

Except there is a major flaw in your logic. There is no expiration date on the license. See its the General Public License and you will not find a time restriction. A license by any other name is still a license... at least when your talking about GPL.

What most people don't understand (and what you left out, arguably) is that the GPL only grants specific rights otherwise denied by copyright law. That's why the remedy for distribution of GPL-licensed code without permission is to cease distribution.

Assuming that they're telling the truth about there not being any external contributions in the last 10 years, how do you know there's still GPL code in the codebase?

I'm not saying that there is, or that there isn't. Just trying to play devil's advocate here... Windows has changed a lot in the last 10 years, and it's entirely possible that in maintaining the code to keep up with those changes they have phased out all of the GPL code in the interim. Of course, until they open themselves up for an audit to pr

Abandonware is just a justification for piracy, it just means that the (c) owner doesn't care enough to enforce their (c). IIRC X-Com was considered abandonware for a while, but with the rise of nostalgic video games it has been rereleased on just about every digital dist service.

The concept of Abandonware does seem to be in-line with the original purpose of copyright; to grant creators the ability to make money from their creations. If creators are no longer interested in making money from a specific creation, then there is no need for the copyright. All this talk about piracy and copyright infringement is really a red herring from people who want to turn copyright into perpetual property rights rather than time-limited monopolies.

"A web hosting provider called Appnor has recently moved the network diagnostics utility WinMTR off of SourceForge, and is now claiming the program to be a closed source, commercial application (it was previously made available under the GPL). I emailed the current maintainer of the original mtr utility about this, and have been informed that this event most likely constitutes an overt GPL violation, as it is presumed that WinMTR contains mtr code. Appnor claims that they have the right to do this, as there have been no external contributions to WinMTR in over ten years. I'm not a lawyer, but I don't think copyright law works that way"

Our response:

1. Our company has rights over the entire source code, bought from the original maintainer. We are the current maintainers. There is NO other code from contributors.
2. The whole thing is written from scratch for Windows. No MTR code is used.
3. The binary is available for free. We just thought nobody cared too much having it Open, since there were no contributions in almost 10 years. The license changes we made are justified by the fact that we own the copyright for the code.

Again, we are not trying to violate GPL and we will make sure there are no licensing issues. In the unlikely situation in which there are some licensing issues, we will make all the required changes/updates to the product, in good faith.

The license changes we made are justified by the fact that we own the copyright for the code, nothing else. A good reason was the lack of interest for the project in the OSS community.

We think the license change is within the boundaries of GPL. We are double checking this with our lawyers.

Thank you for reading the full story.

Dragos MANACCEO Appnor MSP S.A."

With this information it is quite well within their rights assuming they are the owners the source code and have no outside contributions.

Thus you could still obtain a copy of the code which was released under the GPL and fork it. However, since no one touched it in a while I really doubt there is much interest.

I know. Networking. No one networks computers anymore. Shit, this is a pointless as Australia. Who fucking care about some backward shit like networking or a continent? If I bet that it took you longer to write it than to think of what to write, I would be winning some cash, now wouldn't I?
Yes, I know you are Australian.

They could just assume that any reply not prefixed with "IANAL" is advice from a suitable qualified legal profession. Blimey I'd like to see someone go to court with nothing but Slashdot comments as their case.

Yup, barring any contradictory facts emerging, this appears a pretty clear-cut GPL violation, meaning that they're now guilty of copyright violation of they continue to distribute WinMTR. FSF would probably sort this out pretty sharpish.

I finally managed to pull a copy of the v0.8 source from archive.org [archive.org], and it seems that you can still access the CVS repository [sourceforge.net] even though it seems to be missing from the SourceForge page. I can find references to contributions by Vasile Laurentiu Stanimir (the main developer) and Silviu Simen in the source code and Teodorescu Cristian in the commit logs. The latter is interesting as he seems to have started work on WinMTR 0.9 in 2004, contradicting Appnor's statement of inactivity.

For the sake of clarity, I'll reproduce my earlier reply to that statement here:

"As others have noted, several people have apparently found mtr sources in WinMTR. This means either (1) you've been misinformed, (2) you're deliberately lying, or (3) they're lying. Given that people have posted actual code excerpts to back up their claims, I strongly suspect you're lying."